Caruso v The Queen - [2020] SASC 174

Supreme Court of South Australia
(Criminal: Application)
CARUSO v THE QUEEN
[2020] SASC 174
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
14 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with refusing to follow the direction to provide personal details, driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control, driving whilst there was present in his blood the prescribed concentration of alcohol and assault of a police officer.
Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.
Held, allowing the application; bail is granted.
Bail Act 1985 (SA) s 14, s 10A; Criminal Law Consolidation Act 1935 (SA) s 20, s 23; Liquor Licensing Act 1997 (SA) s 125; Road Traffic Act 1961 (SA) s 40V, s 47, s 47A, s 47B, referred to.
Smith v The Queen [2020] SASC 132, considered.

CARUSO v THE QUEEN
[2020] SASC 174
Criminal: Application for review of bail

LIVESEY J: This is a bail review pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following the refusal of a magistrate to grant bail on 31 August 2020. Bail was refused by the Magistrate because the Magistrate formed the view that the applicant was a “prescribed applicant” and “special circumstances” as required by s 10A of the Act were not made out. In any event, the Magistrate would have refused bail even if the applicant did enjoy a presumption in favour of bail because of the risk of re-offending.
Circumstances of the alleged offending.
The applicant has been charged on information dated 31 August 2020 with the following offences:
1On 29 August 2020 the applicant refused to follow a direction to provide personal details pursuant to s 40V(2) contrary, to s 40V(4)(b)(i) of the Road Traffic Act 1961 (SA);
2On 29 August 2020 he drove a motor vehicle on Hutt Street whilst so much under the influence of intoxicating liquor as being capable of exercising effective control, contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA);
3On 29 August 2020 he drove a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol as defined by s 47A, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). It is alleged that the relevant blood alcohol concentration was 0.135 grams in 100 millilitres of blood; and
4On 29 August 2020 he assaulted a police officer, a prescribed emergency worker whilst she was acting in the course of her duties contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA).
I need not dwell for today's purposes on whether it is likely that charges two and three will both be pursued.
The basis upon which the applicant was said to be a “prescribed applicant” is that the Act was modified by schedule 2 Part A(1) of the COVID-19 Emergency Response Act 2020 and, where a person is taken into custody in relation to an offence allegedly committed against s 20AA of the Criminal Law Consolidation Act 1935 (SA), that person is a “prescribed applicant” within the meaning of s 10A(2) of the Act.
For the purposes of the hearing before me the respondent did not press the contention that the applicant was a “prescribed applicant”. Nonetheless I think it useful to set out the prosecution allegations.
At about 3:35 am on Sunday, 29 August 2020 police observed a silver BMW travelling south on Hutt Street. They activated emergency lights and sirens and pulled the vehicle over so as to conduct mobile driver drug and alcohol testing. Police saw the driver, the applicant, exit the vehicle and walk quickly away, throwing the car key onto the roof of a nearby building as he did so. The key hit the roof but landed back onto the footpath.
The applicant stopped 50 meters from the BMW and police asked him to state his full name. The applicant did not do so. Police observed that he was unsteady on his feet, his eyes were glazed and his speech slurred. He was asked a second time to state his full name but again he refused to do so. He was then arrested. The applicant was taken into custody and conveyed to the Adelaide City Watch House where he was read his arrest rights.
Later that same morning at around 5:16 am a qualified breath analysis operator conducted a breath analysis which returned the reading earlier mentioned of 0.135 grams. The applicant apparently accepted a blood test kit. The applicant was interviewed on video and issued with an immediate loss of licence notice and his vehicle was impounded for 28 days.
About half an hour later that morning a police officer entered the holding cells so as to explain to the applicant the conditions of the immediate loss of licence and impound notices. The applicant became, it is alleged, unnecessarily aggressive and hostile saying, “fuck off out of here before I kick your fucking head”. The police walked towards the door of the cell and whilst stopped in the doorway around two meters from the applicant the applicant again said to the police officer “get fucked” and spat in her direction. Saliva landed on the floor in front of the police officer. The applicant continued threatening police and acting aggressively even after the police officer left the cell. This incident is said to have been captured on a police body worn camera. It may also be that the incident is captured on closed circuit television cameras inside the Adelaide City Watch House.
In connection with this bail review the applicant denies having assaulted the police officer.
A prescribed applicant?
It is appropriate to set out s 10A of the Act:
10A—Presumption against bail in certain cases
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
(1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—
(a)a serious and organised crime offence; or
(b)an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.
(2)     In this section—
prescribed applicant means—
(a)an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:
(i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim's death was caused by the applicant's use of a motor vehicle;
(ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;
(iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or
(b)an applicant taken into custody in relation to an offence against section 17 if there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or
(ba)an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or
(bb)   an applicant who is a serious and organised crime suspect;
(c)     an applicant taken into custody in relation to an offence of


contravening or failing to comply with a control order or public


safety order issued under the Serious and Organised Crime                (Control) Act 2008; or
(ca)an applicant charged with an aggravated offence involving physical violence or a threat of physical violence if an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent; or
(d)an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:
(i)    section 20A;
(ii)     section 85B;
(iii)    section 172;
(iv)    section 248;
(v)     section 250; or
(e)     an applicant taken into custody in relation to a serious firearm


offence (within the meaning of Part 3 Division 3 of the Sentencing                Act 2017); or
(f)    an applicant taken into custody in relation to both—
(i) a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and
(ii)a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953); or
(g)     an applicant who is a terror suspect.
It can be seen that a critical element of the definition of a “prescribed applicant” in s 10A(2) is that the applicant has been “taken into custody in relation to the relevant offence”. On the facts I have outlined, and which were not in dispute for the purposes of this review, the application was not taken into custody in connection with a prescribed offence. That offence was allegedly committed after he had already been taken into custody on other offending.
I will not repeat the analysis undertaken by me in Smith v The Queen.[1] Because the applicant was not taken into custody in connection with the prescribed offending he is not in my opinion a prescribed applicant. Accordingly, he is an applicant entitled to the presumption in favour of bail conferred by s 10 of the Act.
[1] Smith v The Queen [2020] SASC 132.
The circumstances of the applicant.
According to his criminal antecedents history, the applicant’s offending commenced in 2009 with driving an unregistered motor vehicle and carrying an offensive weapon at night in or near licensed premises, together with disorderly behaviour and assault and resist police. In 2011 he was discharged without conviction or penalty for fighting, and in 2015 he was convicted and fined for loitering. During 2015 the applicant was convicted on three counts of failing to comply with a bail agreement for which he was either discharged without conviction or penalty, or fined.
In 2016 the applicant was convicted of driving under disqualification or suspension. In 2018 the applicant was convicted of assault (two counts) as well as aggravated assault given the use of an offensive weapon (being a chair). He was convicted and sentenced to imprisonment for five months and one week which was suspended on entry to a bond of $500 to be of good behaviour for 12 months with conditions and supervision.
Unfortunately, the applicant was arrested earlier this year in connection with charges set out in an Information dated 19 March 2020 for the following offences which it is alleged occurred on 25 January 2020 at Glenelg:
1Assaulted Ashley Louise Mitchell, contrary to s 23 of the Criminal Consolidation Act 1935 (SA);
2The commission of a prohibited act involving human biological material against the complainant, contrary to s 20(a)(b)(1b) of the Criminal Law Consolidation Act 1935 (SA); and
3Stating a false personal detail despite having been required by a police officer to state personal details, contrary to s 125(e)(3)(b)(1) of the Liquor Licensing Act 1997 (SA).
Police allege that at around 1:40 am on Saturday, 25 January 2020 a number of people were in the Jetty Bar at Glenelg drinking and dancing. The applicant and the complainant were among them. Apparently, the applicant and the complainant had been in a brief relationship some months before, though they had been friends for a number of years. It is alleged that, inexplicably, the applicant became aggressive with the complainant, pulled his face close to hers and then spat in her face. She yelled at him and a scuffle followed. The applicant pulled the complainant's hair.
This is all said to be corroborated by closed circuit television footage which also shows the applicant slapping the complainant to the right side of her head, knocking her glasses from her head. After depicting the applicant holding the complainant’s chin with his left hand, the applicant is then depicted on CCTV shoving her backwards before spitting in her face. There was then an altercation involving bystanders. It is at this point the complainant again approaches the applicant and he is apparently depicted pulling her hair causing her head to jolt forward. The applicant was then removed by bar staff and security.
Shortly following the applicant’s removal he was spoken to by police and he gave a false name. Around a week later the applicant was spoken to by police and arrested and taken into custody. He was granted bail and, following a hearing in the Magistrates Court in late March, a bail agreement was entered into and the applicant was again remanded.
Considerations relating to bail.
For the purposes of this review, I have been provided with a warrant history suggesting the necessity for warrants to be issued in 2011, 2014 (twice) and in 2015. It appears that when this matter was before the Magistrates Court, submissions along the following lines were made:
The offence of assault of a prescribed emergency worker excluded the applicant from police bail. If the applicant had been able to apply for bail, police would have refused bail for the following reasons; the applicant has so far failed to comply with bail agreement. He has four first incident warrants issued between 2011 and 2015 for failing to appear before the Court and the applicant has three charges pending before the Adelaide Magistrates Court on 29 September 2020.
The applicant has an extensive and varied criminal history, including five convictions for assault, aggravated assault by use of a weapon, loitering, drive unregistered motor vehicle and 16 “without convictions”.
The applicant is currently on bail and appears to have a complete disregard for any restrictions placed upon him by continually reoffending. This bail authority is left with little option other than to send the applicant before the court to make a fresh submission so as to send a strong message of deterrence to the applicant. One of the applicant's pending matters relates to an assault where the applicant spat in the face of a female victim.
In support of his review, the applicant contends that there are “special circumstances” but he also relies on the following matters:
1The assault comprised spitting towards, not on, the police officer and should be significantly differentiated from an assault that is fully executed because it is atypical of an offence of this type;
2The applicant has a considerable history of mental health difficulties and, on the evening of the alleged offending, he was in the grips of an acute mental health crisis;
3In the past 12 months the applicant has attended the Glenside Hospital for detoxification on three occasions, each of seven to ten days’ duration. Three months and one week before the alleged offending, the applicant had attended the Woolshed at Strathalbyn for drug and alcohol rehabilitation for one week.
4The applicant has been “drug and alcohol free” for 86 days before the evening of 28 August 2020 but, on that evening, he met with his brother and they discussed memories of significant physical abuse suffered, along with their mother, at the hands of their father; and
5The applicant has accommodation available with his mother who is a “pro-social” member of the community who owns her own home in Darlington.
Today I was provided with a bundle of material which supports the diagnosis of a post-traumatic disorder and the requirement for ongoing therapy described as cognitive processing therapy over at least the next 12 months. The material handed to me today indicates that there is a therapy session booked to commence in December 2020.
Disposition of the bail review
I do not regard the applicant as a “prescribed applicant” within the meaning of s 10A of the Act and the respondent did not content otherwise. Accordingly, there is a presumption in favour of bail pursuant to s 10 of the Act.
In my view, whilst the subject alleged offending in August 2020 is serious, it is not a typical example of what Parliament had in mind when prescribing assaults against prescribed emergency workers for the purposes of the Act. Regardless, it is appropriate to grant the applicant bail, albeit on strict home detention arrangements, with his mother acting as guarantor.
I will allow the parties an opportunity to discuss the appropriate conditions which will include electronic monitoring, drug and alcohol testing and treatment, and ongoing psychological treatment.
The order of the Court on this bail review is that bail is granted pursuant to strict home detention conditions and the provision of a guarantee.
As is a necessity for a home detention report, I will direct that that be obtained and adjourn this matter to Friday, 18 September 2020 at 9:00 am.